The Portuguese sailor
Castanho worked for a Panamanian Corporation that supplied, via ship from England, various drilling platforms in the North Sea.In
February, 1977, Castanho was tasked to re-fuel the ship at the English port of Great Yarmouth.While
refueling, a valve in the compressed air powered oil-line exploded, injuring
Castanho in the neck and penetrating his spinal cord--causing the arms and legs
to be totally paralyzed.Castanho filed
suit in England against his Panamanian employer, the English company responsible for
delivering the oil and the company's chief engineer who was ultimately
responsible for the accident.

The incident came to the
attention of a law firm in Texas.They found the accident victim
and even sent one of the partners to England, and later, to Portugal, to convince Castanho to authorize their firm
to file suit against the giant parent corporation with its headquarters in Texas.Under Texas law, the corporation could be held liable for
the accident.They intended to sue the
corporation for 15 million dollars (US) in damages (compensatory and
punitive)--several times the amount requested in the English suit.The firm offered to take the case on a
contingency basis.In the event of a
successful settlement, the firm would charge 40% of the settlement amount.Castanho agreed to the offer and withdrew the
complaint in the English courts (notice of discontinuance) in order to
eliminate a potential plea of pending action in another jurisdiction before the
American court.The defendants adamantly
objected to the notice of discontinuance and to the suit in Texas, claiming that they had already admitted
liability in the matter and paid out 27,250 £ of the settlement--the amount of
which was still being determined.The
defendants had initial success before the first instance of the Queen's Bench Division[1]
.The Court found that the notice of
discontinuance appeared to be an abuse of legal rights.An injunction was issued forbidding the
plaintiff to file suit in Texas or in any other jurisdiction.This action was justified to protect the defendant and to generally
disapprove of "Forum Shopping".The Court of Appeal set aside the lower court's ruling--against the vote
of Lord Denning, M.R.[2]The notice of discontinuance is specifically
permitted by the law ofprocedure[3]
and a prohibition on filing suit in a foreign country would lead to a
"ridiculous charade"[4]--due
to the lack of enforceability--in Texas.The
House of Lords called the prohibition a "brutum fulmen"[5]
and allowed the notice of discontinuance, although the discontinuance
represented a general abuse of the law.The calculation of the lawyers and Mr. Castanho proved to be
correct:After the American corporation
fought in vain to have the jurisdiction of the American courts set aside[6],
the parties settled, giving the plaintiff and his lawyers a huge settlement[7].

Forum shopping is
understood as the selection of a judicial jurisdiction[8].The term does not imply that forum shopping
is allowed, although "forum shopping" is often used as a
pejorative.We prefer not to use the
term in this manner.Rather, what
interests us is whether forum shopping is allowed, under what circumstances it
is prohibited and how to react to it.

When
evaluating forum shopping, it is important to differentiate between the various
forms.Typically, there are three:

a)Prorogation of the parties; whereas at least one of the
parties attempts to reach agreement on the most advantageous forum.

b)Surreptitiously obtaining a legal jurisdiction;
the deliberate and calculated attempt to fulfill the requirements for
jurisdiction prior to the start of any legal action.Surreptitiously obtaining a legal
jurisdiction can occur unilaterally or through prior agreement of both parties,
or to proceed on the merits with the trail before the surreptitiously obtained
forum.

c)Taking advantage of what would normally be an
available forum to bring a case before the court which, from a supranational
point of view, has a competing jurisdiction with domestic and foreign courts.

Forum shopping is commonly associated with surreptitiously obtaining a
legal jurisdiction (aforementioned Type b).Memories of Transylvanian marriages[9],
Latvian divorces[10] and the more contemporary
practice of "Mexican divorces"[11]
only serve to underscore this association.Today, however, forum shopping as described under type c has a much
greater significance than surreptitiously obtaining a legal jurisdiction.This applies both to the sheer number of
cases as well as the impact.I will
therefore concentrate the remainder of this article on taking advantage of
existing legal jurisdictions.

It is uncommon for forum shopping to be as blatant as was the
case in the Anglo-Texan tug-of-war.Or,
as Lord Denning sarcastically noted:The
American lawyers became aware of Castanho's plight too late[12].Had they started their fishing expedition
sooner, we would be examining a suit filed in Texas by a Portuguese Sailor, there would be no
discussion pertaining to the withdrawal of the suit in the incorrect forum and
we would assume that a calculated forum shopping had preceded the filing of the
suit in Texas.It is
exactly this quiet and targeted action in the pre-trail phase that is, however,
characteristic for selecting the most favorable forum.The motives for this kind of tactical
consideration are numerous.

a)The most advantageous
substantive law for the plaintiff, applicable in the state where the action is
brought to court, is generally considered to be the primary motive for forum
shopping.This supposition is probably
accurate.Not just the accident
involving Mr. Castanho[13],
but also product liability action for damages against American aircraft
manufacturers[14] as a result of defective
aircraft provide anecdotal evidence to support this motive for forum
shopping.Along the same lines, claims
for damages are often filed by American and European plaintiffs against
European companies in the U.S.[15]Where the damage actually occurs is of little
significance as long as the American jurisdiction is not called into question
due to the location of the incident[16].

The broad nature of
American liability law[17]
is not the only enticement to forum shopping, or as Lord Denning put it:"As a moth is drawn to the light, so is
a litigant drawn to the United States."[18]We should not forget "divorce
paradises."[19]Where domestic law makes a divorce difficult,
or even impossible, but is liberal in its recognition of foreign decrees, the
foreign judge is quick to free the applicant from the bonds of marriage[20].The practice is another story.More often, such decrees are not recognized
by domestics courts[21].Additionally, the world-wide liberalization
of divorce laws appears to indicate that the divorce paradises have reached
their zenith[22].Whether such jurisdiction will once again
blossom is doubtful.A more likely
scenario is that other motives within the realm of divorce law will lead people
to pursue forum shopping.The primary
consideration will no longer be removing the bond of marriage, but, rather, the
increasing importance assigned to the legal consequences of divorce.In order to avoid the adjustment of pension
rights, or attain an adjustment, the divorce will be filed before domestic or
foreign courts[23].The success of this tactic is questionable;
under certain circumstances, an adjustment of pension rights can also be
executed abroad or isolated domestically[24].

Exotic reasons such as
adjusting pension rights are not the only motivation emboldening couples to
search for advantageous forums.Discharge of child support payments[25]
or the allocation of joint custody of children[26]
fires the imagination and often leads to parallel cases[27]
or a petition before the domestic court to render a foreign decree ineffectual[28].

b) The evidentiary rules
can also animate a plaintiff to pursue forum shopping.Two cases illustrate the point.

The Maharanee of Baroda,
living at the time in Paris, purchased a Francois Boucher painting from the Parisian Gallery
Wildenstein in 1965 for approximately 33,000 £ (converted).Some two years later, the Indian Duchess put
the painting up for auction at Sotheby's of London.The
painting was not sold.Furthermore, an
art expert believed that the so-called Boucher painting was not a real Boucher
and the auction house thought that the painting would bring at most 750 £ at
auction.Of course, the Duchess was not
happy about this turn of events.She
demanded that the Wildenstein Gallery return her money should the description
of the painting as a Boucher turn out to be incorrect.What happened at this point was reminiscent
of the lectures of William Thackery. The
Maharanee had the papers served personally to Mr. Wildenstein during the races
at Ascot and justified the jurisdiction of the English
courts through this action[29].Then, as Lord Denning noted, both parties
were "citizens of the world,"[30]
both parties had sufficient social and business ties to England[31], and the plaintiff had a valid interest in
bringing suit in London and not before the jurisdiction of the legal residence for both parties[32].In England, both parties are allowed to call expert witnesses
on their behalf.The experts could then
clarify their expert opinions and defend their positions during
cross-examination.On the other hand, in
France, expert witnesses are appointed by the courts,
evidentiary materials are restricted, and courts are satisfied with only a
written opinion; no cross-examination of the witness takes place.The more favorable--from the Duchess`
viewpoint--evidentiary rules certainly played a role in selecting English
jurisdiction.

Evidentiary Rules as an
inspiration for forum shopping is not an isolated event, as can be deduced from
the previously summarized case.For
product liability cases, American rules of evidence offer the victim
considerable advantages.So that it is
not just American tort law that makes the American forum so attractive.Through the use of pre-trail discovery for
example, the probability dramatically increases that the decisive production
defect or error for all types of manufacturing comes to light.In March , 1974, when, at the time, the worst
aviation accident in history occurred just outside Paris, the surviving dependents did not file suit in
Paris (location of the accident), nor in Turkey (headquarters for the airline), nor in London (headquarters for the insurer).Rather, they filed suit against the airplane
manufacturer (McDonnell Douglas and General Dynamics), the Federal Aviation
Agency and the Turkish airline before the US District Court in Los Angeles[33].The
manufacturers were located in California and the cases could be concentrated under
Judge P.M. Hall, a specialist on airplane accidents.During the pretrial discovery phase, the
defendants were required to provide thousands of documents which revealed
errors and mistakes that were literally unbelievable[34].Within 18 months of the accident, Judge Hall
ruled on the applicable law for the case and most of the surviving dependents
settled shortly thereafter[35].It is no surprise then, that the lawyers for
the plaintiffs did not accept a meager settlement from the insurer, Lloyd's of
London, and instead searched for and found their justice in the United States35a .

c) Rapid legal protection
is a primary factor when the client considers which forum to select.Whether legal protection is quicker
domestically or abroad depends in large part on the lawyers as well as the
courts.But, as the Paris Air Crash case
shows, energetic activity on the part of the lawyers and the judge during the
pretrial discovery phase can accomplish a great deal[36].In the London trial of the Maharanee of Baroda, Lord Denning
also justified English jurisdiction due to the extreme length of a trial
resulting from a huge case backlog in France and that the Maharanee could therefore expect
a more timely resolution of her legal problems in England[37].

In most cases, it is not
clear to what extent a timely resolution of the matter is a primary motive for
forum shopping.I believe that this
aspect will gain greater importance in Europe as the time, in certain European countries,
from filing a claim to final judgment continues to grow.A trend in this direction was made clear in a
recent German court's decision regarding jurisdiction in a divorce proceeding
involving a legally separated German-Italian couple[38].Although the wife filed for divorce before an
Italian court, the husband was allowed to also file for divorce in Germany and the plea of pending action before another
jurisdiction was set aside.The German
court found that the Italian proceedings were not moving forward and the legal
protection of the husband's legal interests could not be influenced in an
unreasonable manner.

A forum shopping ratione velocitatis comes closest to the
already existing domestic forum shopping.Where there are competing jurisdictions, a good lawyer advises the
client to file suit before the court where the likelihood of resolving the
matter as soon as possible is greatest[39].

d) Cost considerations
facilitated the Mr. Castanho's decision to authorize the American lawyers to
file suit in Texas[40].The
lawyers provided their services on a contingency basis which meant that
Castanho was not required to make any payments in advance and eliminated his
risk of paying the court costs should he lose the case[41].

The enticement of a large
contingency fee does not lead to forum shopping within Europe;there
is apparently no European Legal system which allows for a quota litis.It is not
however beyond the realm of possibility that at some point it will make the
rounds as to where low monetary barriers simplify people's access to
justice.It could then happen, that, as
is the case of the flight from high notary public fees in Germany[42], in the judicial arena inexpensive countries
with reasonable legal systems will experience an increased case flow.

Finally, we should not
forget that industry, trade and commerce prefer to agree to the jurisdiction
before courts at their places of business.It is not only convenient for the businesses, but is apparently the most
cost-effective approach[43].

e) The execution of the
desired judgment has long been an important consideration for lawyers when
choosing a forum.The plaintiff must
know where to file suit.The fact that a
judgment is for all practical purposes not enforceable due to a lack of assets
in the state does not necessarily eliminate the legal interests of the
plaintiff.The judgment is perhaps
enforceable abroad and it is also possible that the debtor obtains property at
some point domestically.Generally, the
plaintiff will be satisfied sooner, when he or she sues in the same
jurisdiction as the intended enforcement.This is particularly clear with regard to maritime law.To pursue claims against a carrier, charter
ship, or shipowner, the creditor must carefully follow the ships movements,
lure the ship into a port where an effective judiciary exists and chain the
ship down until the titled or untitled claim is fulfilled[44].
"Asset hunting"[45],
combined with forum shopping, has become, under today's maritime law with its
one-ship companies whose owners are difficult to find, a life-saving necessity
should the creditor ever wish to see any money[46].

Forum shopping in international legal relations is worth the effort when
certain prerequisites are fulfilled.

a)In general, every nation regulates their own
international jurisdiction for courts and administrative personnel.But even where the states commit the
international jurisdiction of their decision-taking bodies in treaties,
competing jurisdictions often occur[47].Accordingly, domestic and binding
international law often provides the well-informed lawyer with the opportunity
to choose between domestic and foreign jurisdictions.

In most cases, it is
difficult to determine when an alternative jurisdiction is available.This can lead to unpleasant surprises; it is
not universally clear and unequivocally governed under what circumstances
domestic courts have international jurisdiction, or, as the Austrians say:When the courts can occupy international jurisdiction[48].A while back, Scottish dependents of an
airplane crash victim were disappointed by an American court's decision.The incident involved an airplane produced in
the U.S. by the Piper company.The plane was registered to an English owner
in Great
Britain and all the surviving family members were Scottish.They decided to file suit in the U.S. which promised to be a more lucrative
jurisdiction than Scotland.The American Federal District Court thought otherwise.Ruling their jurisdiction as a forum non conveniens[49], the court
disallowed the suit[50].The Appellate Court found for the
plaintiffs, ruling that the U.S. courts could exercise jurisdiction in this
case[51].Finally, the U.S. Supreme Court, siding with
the lower court, reversed the Appellate Court's decision[52].

b) International
determination of applicable law is only partially standardized atthe international level and enjoys only a
limited scope.One hundred years after
the high-flying ambitions to codify the entire Private International Law
(P.I.L.), the individual states are tinkering at the edges with their own
conflicts rules and according to domestic legal philosophies.The current struggles countries are having
just to create domestic international private laws indicates how far we are
from reaching anything close to a truly international codification of private
law.This condition is not without
consequences.For, as long as several
countries subjugate the same case, in accordance with their own P.I.L., to
another substantive law, lawyers will attempt to attain the most
advantageous--from their clients view--substantive legal arrangement.Whether or not these attempts will be crowned
with success is another matter.Miscalculations often have their origins in an insecure analysis of the
P.I.L. for the lex fori, as well as cases where the analysis is essentially
correct, but the substantive law is misunderstood.Such was the case where an Israeli mother
kidnapped her kids from Berlin, bringing them to Israel with the expectation that the Israeli Judges
would award her custody and disregard the German Courts[53].After considerable back and forth before the
courts, Israel's highest court ruled, that under Israeli law, the well-being of the
children must be the primary consideration in child custody suits and that
returning the children would not unduly injure them[54].

c) Unified civilian
procedural law with its rules of evidence and cost arrangements is almost non
existent.Conventions on international
legal assistance agreements to some extent attempt to extend domestic evidence
rules abroad[55].There have been a few attempts, accompanied
by heavy opposition to American legal concepts, to implement a form of
pre-trail discovery in Germany[56].

Apart from these limited
attempts to expand the territorial reach of rules of evidence, civilian
procedural law remains the domain of lex
fori.In other words, each court
applied to, will use its own procedural law and competing jurisdictions will
judge the same case under potentially different rules[57].This, of course, provides another temptation
to forum shop.

d) Foreign judgments are
increasingly being recognized and executed more than before.This is in part due to the numerous treaties
as well as a more liberalized autonomous law pertaining to the recognition and
execution of foreign judgments.As
increased numbers of foreign judgments are enjoying the protection of domestic
courts, the prospect of executing a court order in a foreign country loses its
significance as a consideration for forum shopping.Logically then, execution of judgments will
dwindle as a prime mover for forum shopping.Cases involving maintenance payments provides insight into this
phenomenon.If the debtor has his
residence abroad and the judgment is recognized in that jurisdiction, then the
creditor would be well advised to file suit domestically[58].There is even a decision from a Swedish court
which strongly disapproved of a suit filed before the Swedish court where the
plaintiff had legal residence.The suit
requested a change to a German court decision which the court rejected and even
awarded the successful German defendant the associated court costs:A suit filed before the courts of the
habitual residence in Germany would have been--due to the application of the
material lex fori--quicker and cheaper and without prejudice for the creditor
since Sweden recognizes the 1958 Hague Convention on the Execution of
Maintenance Payments[59].

a) General international
law does not forbid a person to forum shop.International law is, with regard to forum shopping, only relevant to
the extent that international law set limits to a state's power to exercise jurisdiction.A case of misusing jurisdiction-- to the
extent that such cases have even come out into the open--for forum shopping has
never successfully been upheld.The
characteristic in the searchfor an
adequate forum is to select a thoroughly normal jurisdiction and to avoid
exorbitant jurisdictions.

b) International treaties
often substantiate competing jurisdiction.An example is the European Community Convention on Jurisdiction and
Execution from 1968/78[60].Forum shopping does not just benefit from
internationally stipulated competing jurisdictions.Exceptions from international unifying
determinations of applicable law also cause their fair share of confusion.An example here are the reserve clauses in the
Hague Maintenance Rules favoring the lex
fori as theapplicable domestic law
when the participants are from the same country[61].Under these circumstances, it is advisable
for the person entitled to maintenance payments to clarify the preliminary
paternity issue at his/her place of habitual residence when the paternity
cannot be established in the foreign country and accordingly, the maintenance
claims would fail due to a lack of evidence[62].Once again, we see that determining the most
favorable location to file suit can lead to the conclusion that "there's
no place like home."

There are very few
international treaties that even take up the issue of forum shopping.The Hague Convention concerning the
jurisdiction of authorities and the law applicable with respect to the
protection of minors confronts forum shopping by restricting jurisdiction[63].Likewise, the European Community Convention
on Jurisdiction and Execution from 1968/78 at least eliminates exorbitant
jurisdictions internally[64].Both child abduction conventions from 1980
approach forum shopping indirectly, by either making the recognition of child
custody decisions mandatory, thus attempting to ensure that abducted or
improperly retained children are returned[65],
or by providing legal assistance that ensures the return of the children[66].

When discussing forum shopping, at least two legal systems are
affected.Specifically, the legal system
in the selected forum and the system for the disregarded forum.

a) The applicable law on
a unilaterally chosen jurisdiction can generally do nothing against a suit
filed before the courts of the state in question.In most cases, the plaintiff files suit at
home precisely because he/she knows that the court actually has jurisdiction,
but this may not always be true.We only
need remember the detailed justification supporting English jurisdiction in the
case of the Maharanee of Boroda[67],
the refusal to consider the case due to a lack of jurisdiction for American
courts in the suit for damages involving the airplane accident in Scotland[68],
or the Israeli court's behavior regarding the child custody decree favoring the
child abductor[69].

Such uncertainties have
various causes.The jurisdiction may not
be clearly defined; the courts have sufficient leeway to claim jurisdiction[70],
or not[71].The petitioned court could declare itself a forum non conveniens.This is especially the case when, due to the
provided evidence,another state is in a
better position and willing to handle the case[72].

In as much as the
selected court affirms its jurisdiction, a suspected or proven forum shopping
will not prejudice the court.Lord
Denning, otherwise critical of forum shopping[73],
confidently opined when the opposite was true:

No one who comes to these courts asking for
justice should come in vain.He must, of
course, come in good faith.The right to
come here is not confined to Englishmen.It extends to any friendly foreigner.He can seek the aid of our courts if he desires to do so.You may call this "forum shopping"
if you please, but if the forum is England it is a good place to shop in, both
for quality of goods and the speed of service[74].

The House of Lords was of a different opinion[75].Following a near exact recitation of the
above quote, Lord Reid said:

My Lords, with all respect, that seems to me to
recall the good old days, the passing of which many may regret, when
inhabitants of this island felt an innate superiority over those unfortunate
enough to belong to other races.It is a
function of this House to try, so far as possible, to keep the development of
the common law in line with the policy of Parliament and the movement of public
opinion.So I think that the time is
ripe for a re-examination of the rather insular doctrine to which I have
referred[76].

Then the majority of Lord judges did that which a petitioned court alone
can do to restrict what it finds to be an inadmissible case of forum
shopping:The House of Lords restricted
the jurisdiction of the English courts.Whether, in the aforementioned constellation, the decision was legally
allowable[77] or factually justifiable[78],
is another issue.In this regard two
points are worth noting:On the one
hand, only a reasoned control of jurisdictional issues can contribute directly
to a supranational coordination of jurisdictions; on the other hand a generous
opening of the courts will encourage more litigants towards forum shopping.

b) The unilaterally
disregarded forum can, from its own perspective, react differently to foreign
proceedings.

(1) The most obvious
reaction is for the court not to recognize the foreign decision and to do so
because the foreign court does not possess recognition authority.The law for the disregarded jurisdiction
intends, with this action, to brand forum shopping as illegal.This justified action of the disregarded
forum has two flaws: 1) As a rule, it only works against surreptitiously
attained forums or where a serious procedural error has occurred[79],
not where a plaintiff takes advantage of a normal foreign jurisdiction[80]
and 2) often, a recognition in the country of the disregarded forum is
irrelevant because the decision will be executed in the country where the case
is tried.

(2) The party sued in a
foreign country can attempt in the country of the disregarded venue to forbid
the plaintiff from pursuing the case in the foreign country or force the
plaintiff to withdraw the suit.Such an
injunction is most widely known in England and the United States.Originally, theinjunction was used as a weapon in a battle
for dominance between the different branches of the English judiciary.The Chancellor, as the top judge issued
injunctions forbidding the commencement or continuation of a case, or to
prohibit a decision from being executed[81].After these rivalries were institutionally
eliminated, the injunction remained, primarily, as a means to prevent suits
abroad[82].In the suit of the Portuguese national
Castanho, mentioned at the top of this article, the court of first instance
(Queen's Bench Division of the English High Court of Justice) forbade the
plaintiff from bringing action over the same issue before a foreign
jurisdiction[83].This decree was later set aside[84],
but not out of a principled rejection of this type of injunction.Just two years later, the Court of Appeal
issued just such an injunction forbidding an English plaintiff from filing suit
in the United States against a former employer and its American parent company
involving a supposed breach of contract[85].At the same time, the court did note that
such an injunction should be issued with extreme caution and should represent
an exception to the rule[86].Even when caution prevails, it is possible,
as was the case in the anti-trust case by Laker Airways against six Airlines[87],
for a battle to enflame over the choice of venue:Every petitioned court forbids a litigant
from petitioning a foreign court and thereby destroying the proceedings.

Under German Law there is
only one known case, where all three instances forced a German husband who
desired a divorce in the divorce paradise Lettland in the 20`s and 30`sto withdraw the request (for divorce)[88].The courts justified their action under § 826
of the German Civil Code, recognizing that a German citizen, with residency in
Germany who takes advantage of a foreign Court to obtain a divorce against a
likewise German spouse is acting contra
bonos mores.

Although the
prerequisites for issuing an injunction against filing suit abroad are very
narrow, we cannot lose sight of the fact that an injunction is only limited in
its effectiveness.Certain is that the
injunction will not be applied abroad and it could expose the affected party to
a fine[89].Accordingly, a court ordered injunction
against filing suit abroad is more or less a weapon against surreptitiously
obtaining another jurisdiction.It is
not, on the other hand, used to deter a citizen from obtaining a normal foreign
jurisdiction.

(3) The same can be said
of actions for damages as a result of a case pursued abroad.This form of legal assistance will only be
granted for cases involving surreptitiously obtained jurisdictions or judgments
and can, under certain circumstances be successful[90].

(4) More promising is a
domestic suit requesting the disqualification of the demands requested by the
other party abroad.The disqualification
may be a positive or negative action for declaratory judgment[91],
or a suit requesting a reduction of the disputed sale price[92].This approach is of little value when the
domestic court recognizes the pending action in the foreign jurisdiction which
would be the case with regards to a normal foreign jurisdiction, leaving, once
again, cases where the jurisdiction or judgment is surreptitiously obtained.

(5) The bottom line is
that the country of the disregarded venue does have a considerable measure of
control against illegally obtained foreign jurisdictions.It can do little, however, and should not
undertake to prevent, forum shopping where a party is exercising its right to
take advantage of a normal foreign jurisdiction.

Prorogation can be
liberally applied[93],
or in favor of a weaker contractual party be more complicated or even forbidden[94].In non-pecuniary cases or where only one
jurisdiction exists, choice of forum clauses are not allowed[95].Additionally, provisions exist which can
render a prorogation invalid when the particular case and the parties do not have
sufficient relations to the forum country[96].

Accordingly, all these
regulations render unrestrained forum shopping via prorogation almost
impossible.In continental Europe it is
rare to find an irrelevant jurisdiction clause anyway--a vast majority of such
clauses, are cases where one party manages to achieve a valid agreement
establishing a legally available jurisdiction.

If both parties agree,
through this type of preventive forum shopping, to a single jurisdiction for
any potential legal issues resulting from their relationship and if this
prorogation is valid according to the laws of the prorogated venue as well as
the derogated jurisdiction[97],
then the possibility of subsequent forum shopping is generally
non-existent.This is even true when a
foreign jurisdiction is agreed upon although the expected court decision will
not be recognized domestically[98].Exceptions to a valid obligation are also
rare.One such exception, is when the
prorogated court cannot hear the case because the judicial system has come to a
standstill[99].If, under these circumstances a domestic
court is asked to provide legal redress, then we are not talking about forum
shopping per se, but rather a request for emergency jurisdiction.

Is forum shopping legal?We can
deduce the following:International Law
does not forbid forum shopping.The law
of the selected forum judges the parties` behavior according to their own
guidelines concerning the right to exercise jurisdiction.If there is jurisdiction, forum shopping is
illegal.The law of the non-selected
forum cannot directly hinder forum shopping, only indirectly by sanctioning the
party (or parties) involved.

Forum shopping by
prorogation or surreptitiously obtaining jurisdiction is judged differently
from both legal systems.When a country
throws open their doors to the courts and invites the world to seek and find
justice from their judges, the country legalizes an otherwise despised and
illegal form of forum shopping.On the
other hand, legal systems of the selected or disregarded forum tend to view the
third type of forum shopping in the same light:It is perfectly acceptable for a party to take advantage of a normally
available jurisdiction by selecting the most advantageous forum.As long as the party does not purposefully
and superficially manipulate the facts (e.g. child abductions) in order to
justify a court's jurisdiction.A
discussion on the legitimacy of forum shopping is therefore only worthwhile
with regards to legal forms of forum shopping.

It may be that forum shopping as an alternative selection of available
jurisdictions, as opposed to surreptitiously obtaining a jurisdiction, is
legal, but that raises the further issue of its legitimacy.The many disparaging comments about forum
shopping suggest that this tactic is still viewed as improper, not worthy of a
lawyer and certainly not legitimate.Whether this point of view is correct can be answereddifferently depending on one's perspective.

Experts on the conflicts of laws would prefer to see the same case
judged according to the same legal system throughout the world[100].That this degree of harmony among judges is
more wishful thinking than reality is particularly illuminated by forum
shopping; it is precisely the lack of legal harmony that lawyers take advantage
of, attempting within the law to use the abundance of law to gain an
advantage.When forum shopping is
lamented, it is less an accusation against the practice of legal forum shopping
and more a political disappointment at the fissure between the ideal and the
distant state of contemporary conflicts of laws.

a) The international
lawmakers are attempting to lessen the incentive for forum shopping by
harmonizing rules of selection as well as the material substantive law and
procedural rules.An example here is the
European Community's agreement on debtor contracts from 19 June, 1980[101]
that prevents forum shopping based on the EC agreement on jurisdiction and
enforcement from 1968/1978[102].The same is true for the two child abduction
agreements from 1980 attempting to deter child abductions through recognition
and legal assistance agreements between different countries[103].On the other hand, the international
"lawmaker" encourages forum shopping by standardizing competing
jurisdictions and allowing exceptions to unified standards of conflicts of laws[104].

b) National legislators
can also pull the brakes on forum shopping.They do this by ratifying international treaties or acting unilaterally
to curb forum shopping.More often, however,
they actually extend their own jurisdiction and thereby create competing
foreign and domestic jurisdictions.Of
course this motivates lawyers to forum shop and counters the argument that
forum shopping is improper or somehow illegitimate.

a) The courts of a
unilaterally selected forum fulfill the expectations of their legislators or
enhance through their own discretionary powers general clauses such as forum non conveniens or misuse of
rights.It is only in this narrow area
of the law where courts can influence forum shopping.It is not permissible to disregard the
application of the P.I.L. of the lex fori and then to apply the P.I.L. of the
state where the courts possess a stronger jurisdiction[105].Turning their back to the domestic P.I.L.
would have a chilling affect on forum shopping, but is hardly enforceable[106].The concept of the forum non conveniens is another matter[107].Likewise, the establishment of subsidiary
rules of selection where the case has little to do with the domestic court and
where the party has lost its connection to the former applicable law would curb
forum shopping[108].

b) The courts of the
unilaterally selected forum indirectly sanction forum shopping by refusing to
recognize foreign decisions.Domestic
political concepts about forum shopping can only be realized to a limited
degree as applicable law changes very slowly through the influence case law[109].

The motto for parties
with an international case is "the world is my oyster."More specifically:I will file suit before the court exercising
jurisdiction where my interests are most likely to find justice.An international case as a practical matter
is not subject to a legal system until the selection of the forum and the
forum's rules concerning the conflict of laws fixes the applicable law[110].

Naturally, special and
exorbitant jurisdictions do exists.These jurisdictions are the same, in as much as each party may take
advantage of the jurisdictions when the prerequisites are fulfilled.It is not forbidden for any party or their
lawyers to take advantage of the most advantageous forum.It is neither dishonorable, nor unworthy of a
lawyer.In fact, the opposite is
true.A lawyer who has the interests of
his/her client at heart, should not at all costs encourage the client to seek a
court judgment at the place where the lawyer practices law.The lawyer is even required to counsel the
client that the chances of success are greater abroad than at home[111].That does not mean that a lawyer should
repeat the tactics of the law firm in "a Texas-style claim"[112].What was disturbing to English and our
sensibilities is that the firm went on a client hunt and offered themselves as
the defender of his interests in a blatantly commercial manner.In Texas this is, as Lord Denning reported
"big business"[113],
but not yet a standard business practice in Europe.This is not to say that the English lawyers
did everything within their power to get the best settlement for Mr.
Castanho.They should have come up with
the idea themselves to file suit in Texas and after consulting with Mr. Castanho
done so.

The duties of a competent
lawyer are not exhausted in the lawyer's knowledge of the rules concerning the
conflicts of laws or the foreign law applied in the courts where the lawyer
practices law.A good lawyer must also
be aware that a case with foreign implications might provide competing foreign
and domestic jurisdictions.The lawyer
must explore the possibility that a case before a foreign court might be more
lucrative for the client.From this
point of view, there is only one boundary that the lawyer and the client may
not cross:Surreptitiously obtaining a
jurisdiction.Illegitimate, and even
illegal, for example, is justifying a jurisdiction through child
abduction.In this case, a unilateral
attempt is made to obtain a jurisdiction after disagreements about the
custody of a child arise.The intent
being to gain an advantage vis-à-vis the already existing legal positions[114].Along the same lines, is the case where a
purely domestic case is transformed into an international case by arbitrarily
resorting to a foreign court[115].
In contrast, the interesting and typical
cases of forum shopping discussed here concern litigants taking advantage of
competing jurisdictions that already existed before the legal relationship came
into effect.In these case, a
jurisdiction is not manufactured after the fact.

Legal advisors must
therefore move away from viewing international legal relations through purely
parochial lenses.A judge should
generally limited himself/herself to applying the international private and
procedural laws of his/her lex fori.The
judge is not burdened by international conflicts of laws[116],
the same cannot be said of the lawyer.With international cases, the lawyer must shed the advisory function
under domestic P.I.L. in favor of a more supranational viewpoint.The lawyer must advise whether foreign courts
can exercise jurisdiction, and if so which courts.He/she must advise the client as to which
substantive law and procedural rules provides the best prospects for success.The lawyer is thus obliged to subjugate a
cloudy legal case to the legal system of the petitioned court.

This type of forum
shopping is not only legitimate, it will continue to be so for some time.Then, as real life indicates, a forum is
selected not only due to the most favorable applicable substantive law.Procedural rules in a broader sense
(evidentiary rules, cost considerations and speed of justice) are key factors
in motivating a lawyer to forum shopping and procedural rules are infinitely
more difficult to harmonize than is P.I.L. and material law.Only on occasion is forum shopping confronted
by rigorous international treaty limitations.Who will deny a person due process by forbidding forum shopping?Only surreptitiously obtaining a jurisdiction
should be disallowed, not the often healthy competition for fast, effective,
and proper justice.

We should not lose sight
of the fact that, in contract law, each party can potentially be the plaintiff
and petition his or her own most favorable jurisdiction.The opponent is then at a corresponding
disadvantage.It is therefore
recommended that the parties agree to a jurisdiction[117].The agreed jurisdiction should encompass all
claims for both parties emanating from the same contractual relationship[118].

We already touched upon
the concern that the court may not exercise jurisdiction or the uncertainty as
to whether or not the court will apply the more favorable law in the case[119].The risk is relatively small if the lawyer is
working on a contingency basis and the petitioned court rejects its
jurisdiction.On the other hand, if the
case is tried, then the outcome can differ from expectations.The claim comes into force and the lawyer
participates in a rather lean settlement.Where a quota litis is not
agreed upon or cannot be agreed upon, the financial risk is, accordingly,
higher.

Furthermore, lawyers do
not always observe the principled that the case should be tried in the country
where the domestic law for the legal relationship is applied.As uneconomical as it is to sue formaintenance payments in Sweden under German
Law[120],
it is more tedious, difficult and expensive for the court to judge a complex
legal issue under applicable foreign legal norms.As a result, lawyers should take care to ensure
that the selected forum will also be applying the substantive lex fori[121].Doing so not only streamlines the proceeding,
but usually ensures the possibility of appeals; most civil supreme courts will
not review the concrete application of foreign law[122].

Finally, do not forget
that "what is good for goose" is not necessarily "good for the
gander."The defendant in a
selected forum may not always be as amenable as the Mines de potasse d`Alsace
was in the Dutch Pure Water Case[123].The defendant is likely to fight the
jurisdiction of the forum[124]
and if the defendant does not fear fighting jurisdiction, then probably
question the applicability of the lex fori[125].Additionally, the defendant may attempt by
filing a parallel suit abroad to block the domestic court case or at least to
minimize the impact of the case beyond national borders[126].This approach is not just attempted to delay
proceedings, but also to fight the advantage that the plaintiff hopes to
achieve through the application of the lex fori.

In spite of the
advantages of legal and generally legitimate forum shopping it is not always
the most fruitful plan of action.In
each individual case of any significance the lawyer should examine whether the
potential advantages really outweigh the disadvantages.But considering the pros and cons of a
particular course of action can only be accomplish by a careful legal
comparative analysis and evaluation.The
phenomena of forum shopping is a reflection of the state of today's P.I.L., as
a political appeal to prevent the unjustified search or successful attempt to
acquire a favorable jurisdiction, or a wake-up call to employ through pre-trial
comparative law a legal form of forum shopping that protects the legitimate
interests of the parties.

[3]
Rules of the Supreme Court (Abbr.: R.S.C.), Order 21 rule 2, The Supreme Court
Practice, Vol. 1 (London 1978) 361; This regulation was changed effective 1
Oct. 1980 through the introduction of paragraph 2a:A party which has received advanced payments
from the opposing party may only withdraw the suit with the permission (leave)
of the court:Supreme Court Practice
1982, Vol. 1 (London 1981) 401.

[7]
According to Lord Denning, M.R. in the case Smith
Kline & French Laboratories Ltd. v. Bloch, [1983] 2 All E.R. 72, 74 =
[1981] 1 W.L.R. 739, 734 (C.A.): "His (Castanho's) American lawyers won a
huge settlement to the profit of the litigant and of course for themselves as
well."

[19]Kugler v. Haitian Tours, Inc., 293 A. 2d
706 (Super.Ct.N.J. 1972):A prohibition
of the sale of "Haitian divorce packages" which included a trip to
Haiti, room and board for one or two days as well as the preparations for
obtaining a divorce (approximately 50% of the package price).See also Swisher (Footnote 11).

[22] An
exception applies under certain circumstances to those states that do not allow
divorce (e.g. Argentina, formerly Ireland, Malta and the Philippines) and
states that do not recognize foreign divorces (e.g. Argentina for couples
originally married in Argentina):Also Fritsche, StAZ 1983, 284:The divorce of Argentineans in Germany under
the false pretense of German citizenship, and then a marriage in Paraguay.The same is true for marriage paradises.Tondern(Danish)marriages
are now unnecessary since domestic divorces, regardless of the law of origin, releases
the couple from the marital obligations:BVerfG 4.5.1971, BVerfGE 31, 58=NJW 1971, 1509=RabelsZ 36 (1972) 358
(Commentary Neuhaus).

[23] This
impression arises from the numerous requests for information on this subject at
the Max-Planck Institute, Hamburg.

[28] In
the case BG 22.2.1979 (footnote 25) the wife requested a declaratory judgment
that she was still married.The judgment
was granted, since the Hungarian courts could not execute jurisdiction without
the consent of the wife.

[39]
Domestic forum shopping plays a greater part in states where the legal systems
are separated territorially (particularly in the United States).Also, for information on the situation in the
United Kingdom, see MacShannon v.
Rockware Glass Ltd., [1978] A.C. 795 (H.L.); also published in: [1978] 1
All E.R. 625 = [1978] 2 W.L.R. 362:A
Scottish accident victim (the accident occurred in Scotland) files suit in
England.In England, the settlement will
be larger, the case will be handle more quickly and it costs less.

[47] For
example, The EC Agreement on Jurisdiction and Execution, 9.10.78, Official
Journal of the European Communities, 30.10.1978, L 304/77-102; also published
in Jayme/Hausman, Internationales
Privat- und Verfahrensrecht, 2. Aufl. (München 1983) 149-171.

[57] On
the other hand, in the few instances where foreign procedural rules are used
or, at the very least, considered, they do not have a major impact on the
outcome and therefore do little to keep someone from forum shopping.

[61] Art 2
of the Hague Convention on applicable law for child support payments,
24.10.1956 (BGBl 1961/293); Art 15 of the Hague Convention on applicable law
for child support payments, 2.10.1973, printed in Jayme/Hausmann (footnote 47) 42, 45.

[65]European
Convention on the Recognition and Execution of Decisions pertaining to the
Custody of Children and the Re-establishment of Custody, 20.5.1980, European
Treaty Series Nr. 105 (English version) = Swiss Bundesblatt 1983 I 127-138
(German translation).

[70] As
was the case in Maharanee of Baroda v.
Wildenstein (footnote 30); The
"Atlantic Song", [1983] 2 Lloyd's L.R. 394 (Q.B., Adm. Ct.):The non-observance of a prorogation in favor
of Swedish courts between Swiss and Japanese freight owners and the Japanese
carrier.

[71] On
Israeli law see footnote 53 (Jundeff affair); on English law which does not
recognize the rejection of jurisdiction as a "forum non conveniens",
as opposed to Scottish law, also The
Atlantic Star (footnote 75) and MacShannon
v. Rockware Glass Ltd. (footnote 39).

[75]The Atlantic Star, [1974] A.C. 436
(H.L.); also printed in: [1973] 2 All E.R. 175 = [1973] 2 W.L.R. 795 = [1973] 2
Lloyd's L.R. 197.The incident involved
a collision between two Dutch ships off the coast of Belgium.As the plaintiff was not satisfied with the
Belgium suit, he had the other ship chained in Liverpool and started a suit in
rem jurisdiction in England in the hope that he would achieve better results
than in Belgium.

[77]
Applicable in the case was the Brussels international convention on the
unification of regulations pertaining to the civil court jurisdiction for ship
collisions, 10.5.1952, printed in Zweigert/Kropholler,
Quellen des internationalen Einheitsrechts, Bd. II (Leiden 1972) 44.Article 1 I lit. b of the convention foresees
the jurisdiction of the court at the seizure location.

[78] This
is probably the case.The defendant's
ship had already been seized in Antwerp and then released against the payment
of a security deposit.A plaintiff
before an English court "must not be acting vexatiously, oppressively or
in abuse of the process of the court":Lord Reid (footnote 75) 454;
also MacShannon v. Rockware Glass Ltd.
(footnote 39).

[79] BG
22.2.1979 (footnote 25):Non-recognition
of a Hungarian divorce--the wife did not participate in the Hungarian divorce
proceedings.

[89] In
England and the United States the served party can be charged and fined with a
contempt of court citation for not following the court's instructions:See, James
v. Grand Trunk Western Railroad Co., 152 N.E. 2d 859 (Ill. 1958).In Germany the enforcement is carried in
accordance with § 888 ZPO (Enforcing unaccountable behavior through fines of
jail sentences).

[96] For
example Art 11 II, 12 I 2, from the ZPO for the Canton Zürich with regard to
the prorogation of the Zürich courts;on
the English meaning of domestic "forum conveniens" where a
prorogation of a foreign court was disregarded, see the "Atlantic Song" (footnote 70).

[101]
Official Journal of the European Communities Nr L 266/1, 9.10.1980; also
published in RabelsZ 46 (1982) 196-221 and in Jayme/Hausmann (footnote 47) 77-86.

[102]
Specifically mentioned in Giuliano/Lagarde,
A report on the convention pertaining applicable law in contractual
obligations, Official Journal of the European Communities Nr C 282/1, C 282/5,
31.10.1980.

[114] This
censure is clearly articulated in the court decisions for the Affair Jundeff (footnotes 53 and 54) as
well as in other decisions: Re T. (infants), [1968] 3 All E.R. 411
(C.A.):The return of children to
Canada; M. V. M. (Custody of
Children), (1983) 4 Family Law Reports 603 (C.A.):Return of children to Italy; also Siehr, Kindesentführungen ohne Ende—but
also:Il y a des juges à Accra, FamRZ
1976, 225-257:Return of a German child
from Ghana to Germany.

[125] This
was originally the case for the defendants In
re Paris Air Crash of March 3, 1974 (footnote 14) 745; A couple of Japanese
plaintiffs requested the application of their domestic law which was even more
liberal than Californian law: ibid 739.

[126] As
was the case in Castanho (footnotes
1, 2 and 5), Smith Kline (footnotes 7
and 15), Laker Airways (footnote 87),
Tracomin (footnote 97) and BGH
6.10.1982 (footnote 26) as well as In the
Marriage of Takach, (1980) 47 Federal Law Reports 441 (Family Court of
Australia):A wife domiciled in Sydney
sues at the domicile of her husband in Hong Kong, the husband sues in
Australia.For an overview:RhidianThomas, Restraining concurrent foreign
legal proceedings, Lloyd's Maritime & Commercial Law Quarterly 4 (1983)
692-701.